Murray-Darling Basin Plan

by Vickie Chapmanon February 12, 2019

Motion

I rise to speak on the motion and am very pleased to support the same. First, I will address the Productivity Commission report, which was prepared in late January. It was a report considering the halfway point of a 12-year implementation program of the basin plan, which is required under the legislation. It provided 29 findings on the progress of the plan to date and 37 recommendations.

Interestingly, they did record that around 2,000 gigalitres of water had been recovered for the environment as part of their findings within the plan, that is, 20 per cent of the water available for consumptive users than a decade previously. That was heartening to read. They also made recommendations about the Murray-Darling Basin Authority, which was the new entity established under this whole new model of management since the passage of the Water Act back in 2007. In doing so, they suggested that it should split up its implementing and enforcement powers and operations in relation to the authority's work. That is a matter that obviously can be considered.

The Productivity Commission also made it clear that the basin states themselves, notwithstanding this new structure that had been established, must take responsibility for implementing the $13 billion plan rather than just the Murray-Darling Basin Authority. I think that was an important signal—it certainly was to me and I would hope other members of the house—of the significance of ensuring that all the parties to this agreement, that is, the member states and the commonwealth, stay at the table and ensure that they monitor and manage the responsibility of making sure this whole plan works.

We must remember that this plan was established under the premise that, instead of just having states make the decisions about the process, there be 13 valleys established across the whole region, that there be an authority put in place to supervise that and able to report where there were breaches of the obligations contrary to each of the plans within each valley. Largely, the Productivity Commission is encouraging in the sense of progress and has provided some useful recommendations.

A few days later, another report was published by Mr Bret Walker on 29 January 2019 pursuant to his commission of investigation into the Murray-Darling Basin and, in particular, pursuant to the commission of our Governor back in January 2018. It was instigated to essentially investigate the operation and effectiveness of the plan arrangements. It was established in the wake of there being allegations of illegal water take in the upstream, in particular in New South Wales.

The former government's decision to action this matter was to initiate a royal commission. It was not uncommon in the history of that government to have royal commissions into matters when they thought things were going wrong. Notwithstanding the instruction and the terms of reference that were presented to Mr Walker, he determined that he would not actually be investigating the alleged larceny. He made it quite clear there were other authorities to do that so, notwithstanding his instruction, he published material to confirm that he would not be doing that.

On that matter, notwithstanding that this appeared to be an impetus upon which there would be some inquiry and that he declined to exercise sections of his instruction in that regard, I did write to him on 18 January. I said as follows:

To a more important matter, you have previously indicated that although you would receive any submissions in respect of illegal take of water, the Commission would not be interfering with any police investigation or State based prosecution. Given that you have now finalised your inquiry, I would appreciate your advice as to whether or not you have referred any matters to investigative or prosecutorial agencies; and, if so, whether there is any action the Government should be taking.

His response on that matter was:

I advise that allegations were received on a few occasions during the public submissions phase of the Commission's work. All of them had also been made known to State law enforcement authorities and no further action is therefore required in relation to them.

I am pleased to report to the parliament that at least that has occurred. I am advised, and I think this is as accurate as I can record, as I have made some inquiry on it, that five irrigators have been charged with offences in relation to water larceny in New South Wales. If they have stolen water, they deserve the full force of the law, and that is to be acknowledged.

We did not need a royal commission to do that, but I make the point that there are agencies to deal with these matters. To anyone who suspects that there has been tampering with meters, bypassing of meters, sucking water out of the river without a meter—anything—let's get on with the proper authorities investigating those matters.

The other aspect of this report I bring to members' attention is that the commissioner made a number of recommendations, and we thank him for that, including that the Water Act is constitutionally valid. I am pleased about that because it is one aspect that has been under consideration. Others have supported that position and he has confirmed it, and I think that is good. He did, however, cast doubt, from his point of view, on the validity of aspects of the plan. That is the basin plan itself, including the setting of the environmentally sustainable level of take, the associated long-term average sustainable diversion limit, the amended SDLs, the SDL adjustment mechanism and the Northern Basin Review.

He has made some recommendations on the amendments to legislation. Those matters are all under consideration by the Crown Solicitor's Office, with actioned assessment of that. I think it is important that, even though there is a different legal opinion floating around in respect of these matters, Mr Walker has considered these matters and put in his recommendations. We will investigate and assess those, in particular, if sections 21 or 23 of the Water Act have not been properly implemented, what amendments may need to be progressed.

The findings are there for everyone to read. I hope that members will all take the time to do this because every one of our members here in this house has people somewhere in their electorates who drink, bathe in or rely on water from the River Murray, so I would encourage them to really take a serious interest in this, particularly the newer members.

One of the matters that came up during the course of the operation of this commission was the question of whether the issuing of subpoenas against public servants, including those in the CSIRO and other agencies of the commonwealth, was enforceable. Members might recall that the former member for Cheltenham, former premier Weatherill, tabled a royal commissions bill in 2017. I had a copy of it here in front of me, but, in any event, it was tabled, not introduced, and he did not ever progress it.

The appointment of Mr Walker and the establishment of the commission were done by presentation to His Excellency, and there was no requirement for there to be legislation. However, the former premier did table a bill purporting to ensure that the Royal Commissions Act had the full extent of extraterritorial legislative power of the parliament; that is, it was able to actually act in respect of its application outside the state of South Australia. He did not progress that, for whatever reason. I do not know what advice he received at the time, but I am assuming it is the same advice that I subsequently had, confirmed by Mr Walker, that that was completely unnecessary, that the issue in relation to the enforcement of subpoenas did not require a remedy in the Royal Commissions Act 1917, our South Australian law.

Notwithstanding that, for whatever light-bulb idea moment the member for Port Adelaide had, last year she introduced her own bill with the same provision, that is, to amend the Royal Commissions Act once there had been an issue established in the High Court relating to another matter. Notwithstanding my saying repeatedly to the member for Port Adelaide that she had obviously missed the point that this was not the issue, that the issue in the High Court really related to the whole question of who should be investigating matters such as the enforcement or proprietary of an intergovernmental agreement, not the subpoena issue. Notwithstanding that, she just pressed ahead anyway. Obviously, that fell foul by vote of this parliament.

The commissioner addresses this in his report. I urge members to read between pages 31 and 38, where there is an interesting summary of 'South Australia's interest and co-operative federalism'. It raises two issues; one is the issue about what he says:

Early queries were also raised about the capacity of a South Australian Royal Commission to compel evidence from out of the State. Some of them, echoed by bush lawyers, seemed to be based on a very bleak and savage notion of the relationship between the polities that are members of the Federation.

He then goes on to quote the law and say that these laws:

…leave no doubt that compulsory processes of this Royal Commission could be enforced in other States and Territories of the Commonwealth.

He goes on to explain what happened with respect to action taken in the High Court, the withdrawal of that matter. He then gives a very comprehensive list of why, he suggests, it is important to recognise the need to deal with intergovernmental agreements and who should be keeping an eye on them, who should be able to enforce them and who should be able to investigate them. He gives a helpful contribution on that.

I do not necessarily agree with Mr Walker that the former member for Cheltenham or the member for Port Adelaide are bush lawyers, but obviously it is his description of the view of those who perpetuated that process. Nevertheless, it is for them to answer why they would progress that. He has made absolutely clear in his report what the legal position is in relation to that. So I hope, finally, that the member for Port Adelaide will read that and desist from those sorts of stunts in the future.

The final matter relates to the Royal Commissions Act itself. Mr Walker and his senior counsel during the course of the commission did provide me with advice in respect of the royal commission's legislation generally, and I have taken that on board. I have placed on record my appreciation to have that advice. It is a matter that we are looking at. Certainly, the state of Victoria has upgraded its royal commissions law in recent years, and I understand it is now operating very effectively.

For anyone who has actually read the Royal Commissions Act 1917, it is a very short document, and the contemporary law in relation to royal commissions is one which, if one looks at the Victorian model, is a much more comprehensive model of how these should apply. I want to indicate to the house that we are looking at how we might modernise our legislation in that regard. When we do, I will make sure the member for Port Adelaide gets a special briefing.